People v. Livingston CA2/5 ( 2021 )

Filed 9/20/21 P. v. Livingston CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B303241
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA095848-02)
v.
ROBERT LEE LIVINGSTON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Edmund Willcox Clarke, Jr., Judge. Affirmed in
part, reversed in part, and remanded.
Joanna Rehm, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance
E. Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Michael C. Keller and
Wyatt E. Bloomfield, Deputy Attorneys General, for Plaintiff and
Respondent.
2
Defendant and appellant Robert Lee Livingston (defendant)
was convicted of 18 counts of second-degree robbery, two counts
of attempted robbery, and four counts of kidnapping to commit
robbery after he and a co-defendant robbed a string of AutoZone
stores between December 2016 and March 2017. Defendant was
sentenced to 21 years and four months in state prison, plus four
consecutive life terms. We consider whether defendant’s forced
movement of four AutoZone customers during the robberies
satisfied the elements of aggravated kidnapping, i.e., that the
movement was over a substantial distance, more than merely
incidental to the robbery, and increased the victims’ risk of harm.
We also consider (1) whether the aggravated kidnapping jury
instruction given, CALCRIM No. 1203, correctly states the
“incidental to the robbery” element and (2) whether, as the
parties agree, the trial court was unaware of its discretion to
impose concurrent sentences—which would require a remand for
resentencing.
I. BACKGROUND
A. The Pertinent Offense Conduct
1. Overview of the robberies
From December 2016 to March 2017, defendant and
Markeith Daniels (Daniels) robbed a series of AutoZone stores.
They committed nine robberies, and attempted two others, at
stores in Long Beach, Bellflower, Lakewood, Wilmington, Carson,
Hawaiian Gardens, and Gardena.
The execution of the robberies followed a similar pattern.
Defendant and Daniels arrived at each AutoZone store between
8:00 p.m. and 10:00 p.m. They wore dark gloves and face masks.
3
At least one of them carried a gun. One also carried a dark-
colored backpack.
Defendant and Daniels demanded both the money from the
cash registers and the money from the safe in a back area of each
store. They directed an employee to place the money in the
backpack. As we will describe in more detail, they instructed
employees and some customers present in the store to go to the
back of the store while the robberies took place.
Of the two attempted robberies, one attempt was foiled by
an employee opening the emergency exit and triggering an alarm.
The other, which led to Daniels’ arrest, did not progress past an
attempt because the AutoZone store defendant and Daniels were
attempting to rob was already closed when they arrived.
2. The December 21, 2016 robbery
Cyprian A. and Justin H. were working at an AutoZone
store in Lakewood at approximately 9:00 p.m. on December 21,
2016. A customer, who was a regular, was walking out the front
door when defendant and Daniels (the robbers) entered, pushing
him back into the store.1 One of the robbers grabbed the
customer’s shirt and pulled or led him to an area behind the
registers, which was near the door. The employees were
instructed to go to the back room, or office area, and open the
safe. Justin H., who was the manager on duty that night, opened
the safe. The robbers gave the backpack to Justin H. and kept
the gun pointed at him. Justin H. and the customer began
emptying the contents of the safe into the robbers’ backpack. At
1
The customer was not identified at trial and he was not an
alleged victim of an aggravated kidnapping charge.
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some point, one of the robbers pulled the customer away from the
safe and had him sit on the floor with his head down.
The robbers also instructed the employees to open the black
box under the register. Justin H. went to do so and emptied the
contents, as well as those of the register, into the backpack.
Cyprian A. and the customer remained in the back area.
Shortly before Justin H. reentered the main store area to
empty the register, a customer named Jolly E. entered the store.
The robber with a gun pointed it at Jolly E. and told him to come
to the area behind the registers. That area is surrounded by tall
shelving stocked with auto parts. The safe is located below a
counter or shelf that runs the length of two or three rows of
shelves. Unlike the rest of the store, the back area is not visible
from the store’s front doors or main windows. The area
surrounding the safe was not spacious.
Jolly E. complied and went to the back area because the
robber had a gun. Jolly E. was scared for his life and described
the feeling of being forced to the back room as akin to being taken
hostage. Jolly E. was told to sit on the floor in the back room and
did so. Once he was in the back, Jolly E. could no longer see the
front door through which he had entered.
Once Justin H. finished emptying the contents of the
register and the black box into the backpack, he handed it to one
of the robbers and reentered the back area. The robber with the
backpack left the store, and the other robber exited shortly
thereafter.
3. The January 9, 2017, robbery and kidnappings
Daniel A. and Rene G. were working at an AutoZone in
Carson at around 8:00 p.m. on January 9, 2017. There were
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three customers in the store at the time, Juan F., Carlos M., and
Carlos’s daughter, Frida M. Daniel A. was helping Juan F. when
the robbers entered.
One of the robbers pointed a gun at Daniel A. and told him
to go into the back. Daniel A. heard one of the robbers tell
everybody to go to the back. Rene G. was also instructed to go to
the back of the store. The back area was located behind the cash
registers. The distance from the front door to the cash registers
was approximately 12 feet. The safe was located an additional
distance from the cash registers. As described by Daniel A. and
depicted in the surveillance footage, the back area was not
confined by walls, but by at least five rows of tall shelves with
auto parts on them. It had two “pockets” in the shelving, one in
which a safe was located, and another in which parts were
located. Portions of the area were separated by aisles. Those
areas were not visible from the main store door or windows.
Daniel A. and Rene G. were directed to where the safe was
located.
Juan F. saw one of the robbers had a weapon and became
afraid. Juan F. did not understand very much English, and the
robbers did not say anything to him that he understood. He went
into the back because Daniel A. told him to do so. He did not
want to go into the back area and was there against his will.
Once there, he could no longer see the front door. He was more
afraid while in the back and feared something would happen to
him that would leave his family unprotected. Juan F. spent the
time in the back looking at the ground and occasionally looking
up at the person watching them.
Carlos M. moved to the back area of the store because the
robbers told him to do so. He was scared and did not want to
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move. He did not just leave the store because he thought
something would happen to him if he walked out. Once he and
his daughter moved into the back area, they were again moved
into a different side of the area. While in the back, Carlos M.
kept his head down.
Frida saw one of the robbers was holding a gun. One of the
robbers told her it was going to be okay and directed her to move
to the back. Frida did not want to go to the back area. She was
afraid they would be robbed. She felt more afraid moving there,
but she complied because she thought a robber might shoot her if
she disobeyed. Once in the back, Carlos M. told Frida to put her
head down and she did. When the robbers were taking the
money, they told Frida, Carlos M., and Juan F. to move to
another aisle in the back area. They were separated from the
employees as a result. Frida could not see the front door or
another exit from the back area. She was hidden from public
view, but she could look through and see other aisles.
Rene G. saw one of the robbers take Carlos M. and Frida to
a separate part of the back area. Daniel A. could not see the
customers while they were in the back. The customers tried to
talk to Daniel A. once they were in the back, but one of the
robbers told them to be quiet.
During the robbery, Daniel A. was told to go open up the
register and pull out all the money. He tried, but did not have
the necessary code. The robbers told Daniel A. to return to the
back room, and sent Rene G. to empty the register. Rene G. did
so and put the money in a bag. After Daniel A. returned to the
back room, and before Rene G. was sent to the register, two
additional customers entered the store. They were neither
confronted nor detained by the robbers. While in proximity to the
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safe, Rene G. opened the safe and put the money in the bag.
Rene G. then returned to the back area after emptying the
contents of the register into the robbers’ backpack and they left.
B. The Investigation and Arrests
The attempted robbery that ended in Daniels’ arrest
occurred on March 15, 2017. The police recognized there was a
pattern in the series of AutoZone robberies and realized
defendant and Daniels had begun to double back to stores they
previously robbed. As a result, Los Angeles Police Department
personnel were monitoring an AutoZone in Gardena hoping to
catch defendant and Daniels. That was the aforementioned
AutoZone that was closed when defendant and Daniels arrived.
When the robbers returned to their car and drove away, a police
patrol unit initiated a traffic stop and a vehicle pursuit ensued.
During the pursuit, defendant got out of the car and fled on
foot. An officer pursued him, and defendant dropped a handgun
during the chase. Defendant eventually scaled a wall that
bordered a flood channel, which was a 23-foot drop from the top
of the wall. Defendant escaped, presumably by jumping down the
flood channel. Daniels, who was driving, was apprehended at the
end of the pursuit.
Police recovered latex gloves in the car and in Daniels’
sweatshirt pocket. They found a black ski mask in the road.
Police searched the area through which defendant had fled and
recovered a black rubber glove and a doo-rag. The recovered
items were tested for DNA. Daniels’ DNA was found on the latex
gloves and the ski mask. Defendant’s DNA was found on the doo-
rag and the rubber glove.
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Defendant was arrested approximately a month after
Daniels. When he was interviewed shortly thereafter, defendant
was wearing a cast on his leg. There was a photo of defendant
wearing the cast on his Facebook page. In response to a comment
on the photo asking how he had sustained the injury, defendant
responded he had taken “a leap of faith.”
C. Pertinent Procedural History
1. The information
In December 2017, the Los Angeles County District
Attorney filed an information alleging defendant and Daniels
committed eighteen counts of second degree robbery in violation
of Penal Code section 211,2 four counts of kidnapping to commit
another crime in violation of section 209, subdivision (b)(1), and
two counts of attempted second degree robbery in violation of
section 664/211. The information further alleged a principal in
the alleged offenses was armed with a handgun. It also alleged
defendant had a prior strike conviction. The four counts of
kidnapping to commit robbery alleged defendant had kidnapped
Jolly E. on December 21, 2016 (count 18), and Juan F. (count 28),
Carlos M. (count 30), and Frida (count 29) on January 9, 2017.
2. The verdict
Defendant was found guilty of all counts presented to the
jury. Specifically, he was found guilty of 18 counts of robbery
(counts 1, 3, 10, 12, 13, 15, 19, 21, 23, 25, 33, 34, 36, 38, 40, 42,
44, 46), two counts of attempted robbery (counts 31 and 48) and
four counts of kidnapping to commit robbery (counts 18, 28, 29,
2
Undesignated statutory references that follow are to the
Penal Code.
9
30). The jury also found true the allegations that a principal was
armed with a firearm during the commission of the offenses.
Defendant later admitted the prior strike conviction allegation.
3. Sentencing
At sentencing, the trial court expressed doubt that it could
materially affect the length of defendant’s sentence. The court
stated defendant had earned multiple life sentences the court felt
it was “obligated to give,” as well as separate determinate
sentences it was “required to give.” The court discussed
mitigating factors, including that defendant had not gratuitously
inflicted fear upon the victims and that various witnesses spoke
or wrote to the court in support of defendant’s character. It then
stated as follows: “[T]hose things make me want to find ways to
not include everything I could include. That being said, if I
struck the strike, for example, in determining the determinate
sentence, I still have 18 robberies and two attempted robberies,
each for a separate victim which I believe the law tells me I must
sentence separately and consecutive[ly] . . . .” Later, in
discussing the indeterminate term, the court said: “And for the
kidnapping counts of which there are four, I believe I’m required
to give four separate and consecutive life terms and to include a
minimum parole eligibility.”
On count 1, the trial court sentenced defendant to the mid-
term of three years in state prison and struck the associated
alleged sentencing enhancements. On count 3, the court
sentenced defendant to one year, consecutive to the principal
term in count 1, and again struck all enhancing allegations. The
court imposed the same sentence for the remaining robbery
counts. The court sentenced defendant to eight months
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consecutive for each of the attempted robbery counts and struck
all enhancements. The aggregate determinate sentence was 21
years and 4 months.
As to the kidnapping counts, the trial court dismissed the
strike allegation in the interest of justice. It sentenced defendant
to an indeterminate life term for each count, with a minimum
parole eligibility of eight years. The court stated the
indeterminate life terms were to run consecutive to one another
and consecutive to the determinate sentence. Defendant was to
serve the determinate sentence first, followed by the
indeterminate sentences with their minimum parole eligibility.
II. DISCUSSION
Defendant’s challenges to his convictions for kidnapping to
commit robbery are unavailing. Substantial evidence supports
the convictions because the movements Jolly E., Juan F., Carlos
M., and Frida (the customers) were forced to make were not
merely incidental to the robbery and increased their risk of harm
beyond that inherent in a robbery. Their movement was from the
main store, in view of the front door, to a back area hidden from
public view over a distance that, as can be seen on the
surveillance video played during trial, is significant. Defendant’s
challenge to the validity of CALCRIM No. 1203 fails because the
instruction tracks our Supreme Court’s discussion of the
statutory requirements and is consistent with persuasive Court
of Appeal opinions concerning section 209, subdivision (b)(2)’s
requirement that a movement must have increased a victim’s
risk of harm to qualify as an aggravated kidnapping.
As the Attorney General concedes, however, defendant’s
challenge to his sentence has merit. The reporter’s transcript of
11
the sentencing hearing demonstrates the trial court believed it
was required to impose consecutive sentences for defendant’s
convictions and appears to have been unaware it had the
discretion to impose concurrent sentences. Accordingly, we will
reverse the sentence and remand for resentencing.
A. Substantial Evidence Supports Defendant’s
Convictions for Kidnapping to Commit Robbery
1. Background law
When considering a challenge to the sufficiency of the
evidence to support a criminal conviction, we review the record
“‘in the light most favorable to the judgment below to determine
whether it discloses substantial evidence—that is, evidence
which is reasonable, credible, and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.’ [Citation.]” (People v. Westerfield (2019) 6
Cal.5th 632, 713; see also Evid. Code, § 411 [“Except where
additional evidence is required by statute, the direct evidence of
one witness who is entitled to full credit is sufficient for proof of
any fact”]; People v. Barnwell (2007) 41 Cal.4th 1038, 1052.)
A conviction for kidnapping to commit robbery requires
proof that the movement of the victim “is beyond that merely
incidental to the commission of, and increases the risk of harm to
the victim over and above that necessarily present in,” the
robbery. (§ 209, subd. (b)(2).) “These two elements are not
mutually exclusive but are interrelated.” (People v. Vines (2011)
51 Cal.4th 830, 870 (Vines), disapproved on other grounds in
People v. Hardy (2018) 5 Cal.5th 56.) “‘Whether the forced
movement of the victim was merely incidental to the target
crime, and whether that movement substantially increased the
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risk of harm to the victim, “is difficult to capture in a simple
verbal formulation that would apply to all cases.”’ [Citation.]”
(People v. Williams (2017) 7 Cal.App.5th 644, 667 (Williams).)
2. The movement of the customers was not
incidental to the robbery
“As to whether the movement was more than merely
incidental to the commission of the crime, ‘the jury considers the
“scope and nature” of the movement, which includes the actual
distance a victim is moved. [Citations.] There is, however, no
minimum distance a defendant must move a victim to satisfy . . .’
this element. [Citation.]” (People v. Simmons (2015) 233
Cal.App.4th 1458, 1471 (Simmons).) Similarly, “[t]here is no
rigid ‘indoor-outdoor’ rule by which moving a victim inside the
premises in which he is found is never sufficient asportation for
kidnapping for robbery . . . .” (People v. James (2007) 148
Cal.App.4th 446, 456 (James).) If moving the victim to a different
location on the premises changes the victim’s environment and
increases the risk of harm to the victim, that supports a finding
that the movement is not merely incidental. (See People v.
Robertson (2012) 208 Cal.App.4th 965, 984 [concluding
“movement of the victim from the back of the garage by a door to
the front of the garage next to a large tub of water, was not
merely incidental and increased the victim’s risk of physical and
psychological harm above the risk inherent in the crime of rape”]
(Robertson).)
Further, “the fact that the movement of a robbery
victim facilitates a robbery does not [alone] imply that the
movement was merely incidental to it.” (James, supra, 148
Cal.App.4th at 454.) The question is whether there was any
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gratuitous movement of the victims above that necessary to
assist the robbers in obtaining the property. (See People v.
Washington (2005) 127 Cal.App.4th 290, 299.) “Lack of necessity
is a sufficient basis to conclude a movement is not merely
incidental; necessity alone proves nothing.” (James, supra, at
455.)
Substantial evidence supports the jury’s findings that the
movement of all four customers was more than merely incidental
to the robberies. We discuss the kidnapping of Jolly E. during
the Gardena AutoZone robbery first and the kidnapping of Juan
F., Carlos M., and Frida during the Carson AutoZone robbery
second.
Jolly E. entered the store while the December 21, 2016
robbery was already in progress. By the time either defendant or
Daniels noticed Jolly E. had entered, Justin H. was almost
finished, if not finished, loading the contents of the safe into the
backpack. Justin H. began emptying the contents of the register
into the backpack shortly after Jolly E. entered the store.
Defendant did not need to move Jolly E. into the back room to
complete the robbery. He could simply have told Jolly E. to stand
or sit where he stood. Though the record does not reflect the
precise distance Jolly E. was forced to move, the video footage
played during trial depicts Jolly E. moving from the inside of the
store, on the customer side of the registers, behind the registers
and through to the back area where the safe was located. The
jury could find this distance was substantial under the
circumstances.
Defendant argues the customers were moved solely to
enable the robberies to be done without detection by others who
might thwart the taking or getaway. This assertion is undercut,
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among other things, by the fact that the robbers were wearing
masks that concealed their identities and the speed with which
the robberies occurred—“in and out,” as defendant puts it in his
briefs. Additionally, Jolly E. was not an employee with potential
access to cash. Forcing Jolly E. to the back did not practically
give defendant greater access to any money from AutoZone. But
the jury could have reasonably inferred that forcing Jolly E. to
the back in view of the other employees tended to implicitly
convey a gravity of purpose on the part of the robbers that
facilitated the robbery, i.e., we are professional criminals, we
know what we are doing, we mean business, and “don’t try
anything” lest these innocent bystanders get hurt.
Juan F., Carlos M., and Frida were already in the store
when the January 9, 2017, robbery commenced, but their
movement similarly did not aid in the completion of the robbery.
Defendant and Daniels were targeting the safe and the register.
Moving Juan F., Carlos M., and Frida from the main portion of
the store to the back area did not make the targets of the robbery
any more accessible. Nor did it decrease the likelihood of
detection as, again, the robbers were wearing masks and
completed the robberies very quickly. If defendant merely
wanted to ensure they would not interfere, defendant could have
instructed them to stand or sit where they stood. Instead, the
three were forced to move first to the back area of the store with
the employees, and then again to a different portion of the back
area, in which they were separated from the employees. Though
the record does not reflect the exact distance Juan F., Carlos M.,
and Frida were moved, their double movement, first out of the
main store, and then out of the area in which the employees
were, was not insubstantial under the circumstances. And again,
15
the jury could have reasonably inferred defendant moved the
victims to convey the seriousness of the robbery to the employees.
This is underscored by the unmolested entry of two additional
customers into the store while the robbery was underway. The
jury could have inferred those customers were not detained
because, having detained Juan F., Carlos M., and Frida, the
robbers no longer needed to impress the gravity of the situation
upon the employees and were unconcerned the customers would
impede the robbers’ ability to make a getaway.
Even assuming for argument’s sake, however, that the jury
could not reasonably find the customers were moved for reasons
other than the robbers’ desire to avoid detection, that still would
not help defendant win reversal. At least one case discussing an
analogous issue held that the act of moving a victim to make a
crime easier to commit and to avoid detection was not incidental
to the commission of the crime itself. (See People v. Salazar
(1995) 33 Cal.App.4th 341, 347 [“The movement of [the victim]
was not necessarily related to the rape crime itself; rather, a jury
could reasonably conclude it was an essential part of Salazar's
plan to avoid detection and to make the crime easier to commit”].)
This is particularly true here because none of these AutoZone
customers were either planned targets or actual victims of
robbery. (See James, supra, 148 Cal.App.4th at 457 [movement
of victim from outside of business to inside the business’s
premises was significant in part because the defendants intended
to rob the manager of the business, not the victim].) Defendant
and Daniels moved the customers (so the argument goes) to
ensure they would not escape during the commission of the
robbery and to decrease the possibility that defendant and
Daniels would be captured. Their movements were neither
16
incidental to nor a necessary or natural part of the respective
robberies.
Defendant argues to the contrary, contending all
movements of the customers were incidental to the robberies. To
support this argument, defendant cites a handful of cases in
which courts deemed the movement of employees of businesses
being robbed incidental to the robberies. (See People v.
Ross (1969) 276 Cal.App.2d 729, 731 [robbers demanded manager
move to open back door]; People v. Adame (1971) 4 Cal.3d 417,
418 [robbers moved supermarket employees from checkstand and
manager’s office to safe]; People v. Adams (1971) 4 Cal.3d 429,
430 [robbers moved employees around the room and to a rear
storage area]; People v. Hoard (2002) 103 Cal.App.4th 599, 607
[robber moved jewelry store employees to back office and confined
them to give him free access to merchandise and ability to tell
entering customers the store was closed]; Williams, supra, 7
Cal.App.5th at 653 [robbers moved employees to different rooms
in store].) These cases are inapposite to the facts here, which
involved the movement of customers who were not victims of the
robbery and whose movement did not facilitate the robbers’
access to the objects they desired to steal.
Defendant further argues an act “incidental” to a robbery
cannot mean only an act necessary to the robbery, relying on a
dictionary.com definition of “incidental” to mean “likely to happen
or naturally appertaining.” Even if we were to accept defendant’s
definition, it would not alter our conclusion. There is no basis in
the record to say the movement of customers who happen to be in
a store to a back area away from public view is not “likely to
happen” in a store robbery.
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3. The movement increased the customers’ risk of
harm
When considering whether a movement increases a victim’s
risk of harm, the jury “‘“consider[s] . . . such factors as the
decreased likelihood of detection, the danger inherent in a
victim’s foreseeable attempts to escape, and the attacker’s
enhanced opportunity to commit additional crimes. [Citations.]
The fact that these dangers do not in fact materialize does not, of
course, mean that the risk of harm was not increased.”’
[Citation.]” (Vines, supra, 51 Cal.4th at 870.) “The essence of
aggravated kidnapping is the increase in the risk of harm to the
victim caused by the forced movement.” (People v.
Dominguez (2006) 39 Cal.4th 1141, 1152.)
Substantial evidence also supports the jury’s finding on this
point. Moving the customers from the back area of the store
increased the risk of harm to them. The customers were forced to
move from the main portion of the store, in view of the front doors
and the large store windows making the inside visible to
passersby, to an area where they could not see the front door and
were not visible to someone inside the store, much less someone
approaching the front door. By moving the customers away from
potential public view and from an easy means of escape, and the
robbers increased the risk of harm to them. In addition, the
customers were moved into more constrained spaces. Jolly E.
was crowded into the small area by the safe with another
customer and at least one employee. Juan F., Carlos M., and
Frida were moved from the more spacious area of the store floor
open to customers to a portion of the back where they were
surrounded by tall shelves filled with auto parts. These
movements to a confined space near the employees that were
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actively complying with the demands of defendant and his
accomplice put them more directly in harm’s way and provided
defendant “with new opportunities to engage in additional and
more dangerous crimes out of public view” as well as “increas[ing]
the possibility of something going awry.” (Simmons, supra, 233
Cal.App.4th at 1472.) That defendant did not engage in
additional crimes and that nothing did not go awry does not
negate the increased risk of either.
Additionally, the jury had sufficient evidence to believe the
movement increased the risk of psychological harm to the
customers. (People v. Nguyen (2000) 22 Cal.4th 872, 885-886
[increased risk of harm includes increase in risk of psychological
trauma].) Juan F., Carlos M., and Frida each testified moving to
the back made them more scared. Jolly E. testified the move
made him feel like he was being taken hostage. The jury could
also infer Juan F., Carlos M., and Frida in particular had an
increased risk of psychological harm because they were not only
moved into the back area, but they were then moved again into a
portion of the back area separate from that occupied by the
employees.
Defendant resists these points and believes moving the
customers did not increase their risk of harm. Defendant’s
primary contention is the counterintuitive assertion that the risk
of harm to the customers actually decreased due to the
movement, in part because the customers were kept with the
employees. This is not a good argument. For one thing, and
taking the argument on its own terms, Juan F., Carlos M., and
Frida M. were separated from the employees and placed in a
different pocket of the back area, from which they could not see or
be seen by the employees. For another, defendant’s misery loves
19
company argument is unpersuasive given the particular facts of
where the customers were moved. They were forced to
accompany their armed captors into an area of the store
generally off-limits to customers, one that largely hid them from
view of others and was far more confined a space—boxed in by
tall shelves of auto parts on many sides (as opposed to the more
wide open store floor area normally accessible to customers and
visible to those on the outside). If a struggle ensued or a gun
went off in this more restricted environment to which the
customers were forced to move, the customers were at
significantly greater risk of getting hurt.
Finally, defendant argues that in other cases in which
courts have upheld convictions for kidnapping to commit robbery,
the kidnapping victim was used by the robbers to force the
robbery victim to surrender the goods being acquired or to aid in
their escape and was thus subjected to a higher risk of harm.
(See People v. Laursen (1972) 8 Cal.3d 192, 200; Simmons, supra,
233 Cal.App.4th 1458; James, supra, 148 Cal.App.4th 446; People
v. Baldwin (1961) 191 Cal.App.2d 83.) That no such facts are
present here does not establish the customers were not at an
increased risk of harm.
B. The Trial Court Did Not Err in Instructing the Jury
with CALCRIM No. 12033
CALCRIM No. 1203 instructs a jury on the elements of
kidnapping to commit a specified crime, such as robbery, in
3
The Attorney General contends defendant forfeited the
point by failing to object to the jury instruction at trial. But, as
defendant argues, we can review any claim of instructional error
that affects a defendant’s substantial rights whether or not trial
20
violation of section 209, subdivision (b). Section 209 is often
referred to as California’s “aggravated” kidnapping statute
because it requires proof of elements not required for a
prosecution under the “simple” kidnapping statute (section 207).
(People v. Martinez (1999) 20 Cal.4th 225, 232 (Martinez),
disapproved on other grounds in People v. Fontenot (2019) 8
Cal.5th 57.) In People v. Daniels (1969) 71 Cal.2d 1119 (Daniels),
our Supreme Court interpreted the then-current version of
section 209 (“‘[A]ny person who kidnaps or carries away any
individual to commit robbery, . . . is guilty of a felony . . . .”) to
exclude kidnappings “in which the movements of the victim are
merely incidental to the commission of the robbery and do not
substantially increase the risk of harm over and above that
necessarily present in the crime of robbery itself.” (Id. at 1125,
1139.)
Nearly 20 years later, the Legislature codified the
asportation element of aggravated kidnapping largely as
formulated in Daniels and subsequent cases. (Stats. 1997, ch.
817, § 2, p. 5519 [codified at section 209, subdivision (b)(2)]; see
also, e.g., Martinez, supra, 20 Cal.4th at 232 & fn. 4 [“Section
209(b)(2) thus codifies both [People v. Rayford (1994) 9 Cal.4th 1],
and a modified version of the [Daniels] asportation
standard . . . .”].) As pertinent here, the 1997 version of the
statute differed from the prior version by removing the
counsel objected. (§ 1259 [“The appellate court may also review
any instruction given . . . even though no objection was made
thereto in the lower court, if the substantial rights of the
defendant were affected thereby”]; People v. Burton (2018) 29
Cal.App.5th 917, 923.) As we go on to explain, there was no such
effect here because CALCRIM No. 1203 correctly states the law.
21
requirement that a movement “substantially” increase the risk of
harm. (Stats. 1997, ch. 817, § 2, pp. 5519-5520; Vines, supra, 51
Cal.4th at 869, fn. 20 [the 1997 amendment “modified the
asportation standard by eliminating the requirement that the
movement of the victim ‘substantially’ increase the risk of harm
to the victim”]; Martinez, supra, 20 Cal.4th at 232 & fn. 4
[“Unlike our decisional authority, [section 209, subd. (b)(2)] does
not require that the movement ‘substantially’ increase the risk of
harm to the victim”]; see also Robertson, supra, 208 Cal.App.4th
at 978 [“[S]ection 209, subdivision (b)(2) does not require the
People to prove that the movement substantially increased the
risk of harm”].)
CALCRIM No. 1203 correctly states the elements of section
209 as it exists today. (Compare CALCRIM No. 1203 [providing
the movement “must have increased the risk of [physical or
psychological] harm to the person beyond that necessarily
present” in the crime] with § 209, subd. (b)(2) [subdivision applies
if movement “increases the risk of harm . . . .”].) Indeed,
defendant acknowledges the “literal wording” of section 209
provides that the punishment provided in subdivision (b) applies
only if the movement of the victim is beyond merely incidental
and “increases the risk of harm to the victim over and above that
necessarily present in[ ] the intended underlying offense.” (§ 209,
subd. (b)(2).) Defendant nevertheless contends the legislative
history of section 209 demonstrates the Legislature did not
intend to modify the Daniels asportation test and, as a result, the
proper inquiry is still whether a movement “substantially
increased” a victim’s risk of harm. We find the argument
unpersuasive and instead follow Vines, Martinez, and Robertson.
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C. Remand Is Necessary to Allow the Trial Court to
Exercise Its Sentencing Discretion
“‘[W]hen the record shows that the trial court proceeded
with sentencing on the . . . assumption it lacked discretion,
remand is necessary so that the trial court may have the
opportunity to exercise its sentencing discretion at a new
sentencing hearing. [Citations.] Defendants are entitled to
“sentencing decisions made in the exercise of the ‘informed
discretion’ of the sentencing court,” and a court that is unaware
of its discretionary authority cannot exercise its informed
discretion.’ [Citation.]” (See People v. McDaniels (2018) 22
Cal.App.5th 420, 425 [remanding in light of amendment giving
courts with discretion to strike or dismiss firearm
enhancements].)
Here, the record shows that when the trial court
resentenced defendant, it believed it lacked the discretion to
impose concurrent sentences for either the determinate or
indeterminate terms. Defendant contends, the Attorney General
concedes, and we agree that the trial court had the discretion to
impose his sentences either concurrently or consecutively.
(§ 669.) The parties further agree the record affirmatively
demonstrates the trial court misunderstood its discretion and
does not show remand would be futile. Indeed, the record reflects
the trial court deliberately chose not to impose the maximum
possible sentence and instead expressed at least some inclination
to impose a lesser sentence than the one it felt it was bound to
impose. We agree that remand is warranted to permit the trial
23
court to exercise its discretion in determining whether
defendant’s sentences should be concurrent or consecutive.4
4
The parties also agree the current abstract of judgment has
an error that must be fixed. Specifically, the current abstract
indicates appellant’s sentence on the aggravated kidnapping
charges was seven years to life, when it was instead life with the
possibility of parole. Because we remand for resentencing, the
point is moot.
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DISPOSITION
Defendant’s convictions are affirmed. Defendant’s sentence
is reversed and the cause is remanded for resentencing.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.
25